This is Harry Fine's personal blog containing his comments on current Ontario legal issues and the current state, complexities and absurdities of landlord and tenant law in Ontario. Harry is a paralegal with over 15 years practicing landlord and tenant, Small Claims and Human Rights law and is a former member of the Landlord and Tenant Board. The comments in this blog do not constitute legal advice.

Tuesday, February 15, 2011

Well Reasoned LTB Bed Bug Decision

Here’s a
decision on a case of mine at the LTB, just released, that took a year to
conclude. The legal clinic, Neighbourhood Community Legal took an
unreasonable and defiant position considering the overwhelming evidence against the tenant. The matter was before the Board 5
times in special hearing blocks. By the time the order was written by Member Pilon, 13 months after filing, 7 of 30 tenants had moved out of the building. It was an
application by a landlord for eviction based on interference with enjoyment,
with the landlord’s lawful right, interest and privilege, and for damage. I want to make it clear that it was not Member Pilon who caused any delay, but the Board's scheduling backlog.

My closing arguments to the Member included a respectful submission that the Board needs
to develop an approach to these cases, and currently there is none...it’s all over the
map. I suggested to the Member that assessing blame in bedbug cases is
almost impossible, but that in the midst of this public health crises, the
Board needs to send a message that they will evict if tenants don’t respond
reasonably to efforts by the landlord to resolve the problem. I suggested
that the Board needs to look at the interplay between sections 33, 34, 36 and 20 harmoniously and
determine who has breached their obligations.

Under the Residential Tenancies Act the tenant
has section 33, 34 and 36 obligations.

Tenant’s responsibility
for cleanliness

33. The
tenant is responsible for ordinary cleanliness of the rental unit, except to
the extent that the tenancy agreement requires the landlord to clean it. 2006,
c. 17, s. 33.

Tenant’s responsibility
for repair of damage

34. The
tenant is responsible for the repair of undue damage to the rental unit or
residential complex caused by the wilful or negligent conduct of the tenant,
another occupant of the rental unit or a person permitted in the residential
complex by the tenant. 2006, c. 17, s. 34.

The landlord
has section 20 obligations, which means that once they discover the problem, they
need to resolve the problem quickly and for the time being, at their expense, howsoever caused.

Landlord’s responsibility
to repair

20. (1) A
landlord is responsible for providing and maintaining a residential complex,
including the rental units in it, in a good state of repair and fit for
habitation and for complying with health, safety, housing and maintenance
standards. 2006, c. 17, s. 20 (1).

But once the landlord starts to undertake the work of remediation, the landlord has a right to file a section 69 eviction application pursuant to a section 62
and 64 notice if the tenant does not act as a partner in the cleanup.

62. (1) A
landlord may give a tenant notice of termination of the tenancy if the tenant,
another occupant of the rental unit or a person whom the tenant permits in the
residential complex wilfully or negligently causes undue damage to the rental
unit or the residential complex. 2006, c. 17, s. 62 (1).

64. (1) A
landlord may give a tenant notice of termination of the tenancy if the conduct
of the tenant, another occupant of the rental unit or a person permitted in the
residential complex by the tenant is such that it substantially interferes with
the reasonable enjoyment of the residential complex for all usual purposes by
the landlord or another tenant or substantially interferes with another lawful
right, privilege or interest of the landlord or another tenant. 2006, c. 17,
s. 64 (1).

The Board Member did just that, looking at the
landlord’s efforts and reasonableness, contrasted to the tenant’s obstructive behaviour in determining who had met their obligations under the Residential Tenancies
Act. There were also issues of damages based on expenses incurred by
the landlord in rectifying the problem. This should be a model for this
type of case. Here it is: